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Brennan Center Finds "Full Face Ballot" Law in New York Does Not Limit Election Officials' Choice of

For Immediate Release
Wednesday, November 16, 2005

Contact Information:
Jeremy Creelan, 212 992-8642
Natalia Kennedy, 212 998-6736

Brennan Center Finds Full Face Ballot Law in New York Does Not Limit Elections Officals Choice of Voting Systems
Calls on State Board of Elections to Allow Local Elections Officials to Choose from Full Array of Available Voting Machines

New York, NY Today, the Brennan Center for Justice at New York University School of Law released a legal memorandum analyzing the actual requirements of the provision of New York State law often referred to as the full-face ballot law.

New York State is on the verge of replacing every one of its voting machines across the State to comply with the federal Help America Vote Act. Tragically, the choice of available voting machines is being severely and unnecessarily constrained by the State Board of Elections misinterpretation of New York State election law known as the full-face ballot law. Unless the State Board changes its interpretation immediately, New Yorkers will all be hurt by inferior and less user-friendly voting machines that cost two to three times as much as other voting machines.

It is commonly believed that the full-face ballot law requires all voting systems certified and purchased within the State to present the candidates for all offices and ballot questions on a single face or display at one time. This understanding of the law has led the State Board of Elections to include a version of such a requirement in the draft Voting System Standards issued on November 2 of 2005. The State Board plans to finalize those Standards after a 45-day comment period that started this month. The State Board will only certify for purchase by county elections officials those voting machines that comply with these Voting Systems Standards.

A careful review of both the original legislative purpose and the language of the statute establishes, however, that no such requirement exists in New York law. Rather, a proper reading of the statute indicates that it merely requires the contents of the ballot to be presented in such a way as to make certain that any given screen or page does not exceed the boundaries of the frame. This requirement ensures, for example, that the voter has before her at one time all of the candidates for an office, and no candidate is disadvantaged by being left off the same display as the other candidates.

If the State Board20does not adopt this proper interpretation of the statute, New York States choice of voting machines will be severely limited to those few machines that present the candidates for all offices at once on a single surface. This will hurt New Yorkers in five important ways.

First, research by the leading political scientist in this field, Dr. David Kimball, to be published by the Brennan Center has demonstrated that voting machines with full face ballot designs cause voters to commit errors in voting that lead to invalid votes far more often than other types of ballots. For example, full-face Direct Recording Electronic or DRE systems employ a ballot that displays all of the offices and candidates on a single screen, rather than in consecutive, scrolling screens that the voter touches to select her preferred candidates. The nationwide residual vote or lost vote rate for full-face DRE systems of 1.2% exceeds that for scrolling, touch-screen DREs and precinct-count optical scan systems by 0.2% and 0.5%, respectively. In other words, in any given jurisdiction, purchasing a full-face machine virtually guarantees that many voters will unnecessarily lose their votes in every election.

Second, voting machine manufacturers have already indicated that, in order to comply with the full face ballot requirement, they will be required to design and produce specially-designed machines for New York State. As a result, manufacturers indicate that the cost of each machine will be much higher than the cost of those machines that they sell in other states (which would not comply with the full face ballot requirement). The New York City Board of Elections has estimated that full-face DREs will cost between two to three times more than scrolling touchscreen DREs i.e., as much as $5,700 more per machine. If the New York State Board of Elections does not change its full ballot display requirement, Precinct Count Optical Scans, the other voting system New York is likely to consider, will probably cost New York States cities and counties an extra 20% per machine i.e., as much as $1,500 more per machine.

Third, the unnecessary limitation of choice imposed by this requirement will leave both the State Board and, in turn, county elections officials in the unenviable position of having to certify or purchase machines that have never been used in any election in any jurisdiction in the country. New Yorkers will not know how well these machines work, and how often or in what ways they are likely to present usability problems or otherwise malfunction, until the day after the first statewide election.

Fourth, counties and municipalities across New York State will be forced to choose from an extremely small pool of voting20machines machines that may not be the best fit for voters in a particular jurisdiction. The ultimate consumers the voters and taxpayers will thus be harmed by an unnecessary and unjustified constraint on competition.

Finally, advocates for voters with cognitive disabilities have asserted for many years that these voters face significant barriers to voting on machines that use a full-face ballot format. Many rows and columns of information presented on a single surface can cause substantial and unnecessary confusion to these and other voters, leading to voter errors, loss of independence, or failure to come to the polls at all.

In reviewing the relevant statutory provision N.Y. Elec. L.  7-104 the memorandum concludes that neither that provisions plain language nor its original legislative purpose support the common assumption that all offices must be presented on a single full face. Moreover, despite repeated opportunities over 105 years to require the same, the Legislature has never done so. Even in 2004 when the Legislature was fully aware of the availability of scrolling DRE voting systems and multi-page optical scan ballot systems, its members chose not to include in its amendments to this section language to require that all offices appear at once.

Unfortunately, as New York State begins the process of selecting new voting20machines, voters and taxpayers are about to be the victims of an erroneous and destructive interpretation of state law. Not only does the full-face ballot requirement limit the choice of new voting machines, it also ensures that more voters will lose their votes to those machines. And, on top of it all, New Yorkers must pay more per machine for the privilege of losing their votes, said Jeremy Creelan, Deputy Director of the Democracy Program at the Brennan Center and a co-author of the memorandum released today. New Yorkers deserve the best voting machines available and they deserve to pay a fair price. We call on State officials to interpret this law correctly and revise the pending Voting Systems Standards accordingly, Creelan added.

Sources:

1. The Draft Voting System Standards require that all voting systems provide a full ballot display on a single surface. See Draft Voting System Standards at 4, available at http://www.elections.state.ny.us/hava/machine-cert-6209.pdf.
2. See David C. Kimball, Summary Tables on Voting Technology and Residual Vote Rates, Nov. 14, 2005, available at http://www.umsl.edu/~kimballd/rtables.pdf. Dr. Kimball has also found that full-face voting machines render voters less likely to vote for those lesser offices that are farther down the ballot.
3. DRAFT Preliminary Staff Report on Costs, Electronic Voting Systems Department, New York City Board of Elections, February 2005 (updated March 11, 2005). Specifically, the Electronic Voting Systems Department estimates that scrolling, touch-screen DREs with a verified paper trail will cost anywhere between $2,800 to $4,400 per unit, but that the three types of full-face DREs with verified paper trail will costs between $6,000 and $8,500. For Precinct Count Optical Scans, the Department estimates that a single unit generally costs between $5,000 and $5,500, but that machines that can handle full-face ballots will cost between $6,000 and $6,500 each.